Justice Stevens Gives Major Speech Predicting Cracks in Citizens United Doctrine: What is He Up To?

Lyle Denniston: “Retired Justice John Paul Stevens, a dissenter to the Supreme Court’s controversial 2010 decision in Citizens United v. Federal Election Commissionon money in politics, said Wednesday that the Court has already begun paring the scope of that decision, and predicted that it very likely will do so further in future cases. He did so in a speech at the University of Arkansas in Little Rock. (The text is here.) The remarks continued the retired jurist’s now well-developed habit of commenting on the continuing work of the Court, with candid expressions of when he agrees or disagrees with what it is doing or may yet do.”

Wow.

A big part of the speech focuses on the incoherence of Citizens United doctrine in light of the Court’s more recent decision, in Bluman, to uphold the ban on spending by foreign nationals in our elections. More on that here.

What is Justice Stevens up to? It is hard to see how this speech is not timed to have some influence over the Court and what it will do in the Montana case. Let’s put aside the propriety of the retired Justice speaking about this case (I leave that ethical question to others who know something about the subject—though I predict political hacks on the right will condemn Stevens for making this speech now and hacks on the left will defend him.) But what’s the goal of the speech now? To get the Court to set the Montana case for argument? To buck up the likely dissenters in the Montana case? If it is to get the Citizens United majority to reconsider its opinion in Citizens United, it hardly seems likely to work. His long dissent didn’t do it. What’s different now doctrinally? Bluman? I hardly think that will be enough to convince Justice Kennedy or the Chief Justice. More public criticism? There’s been plenty of that.

The speech certainly increases the public salience of the Montana case, and in this way, Justice Stevens, like Justice Ginsburg, speaks truth to power.